Citation Nr: 0101356
Decision Date: 01/18/01 Archive Date: 01/24/01
DOCKET NO. 99-02 639 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for restrictive lung
disease.
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
C. Allen, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1976 to January
1978 and from June 1981 to October 1988.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 1995 rating decision of the
Department of Veterans Affairs (VA), Regional Office (RO), in
Montgomery, Alabama, which denied a claim by the veteran
seeking entitlement to service connection for a lung
disability involving restrictive lung disease.
REMAND
After careful review of this case, the Board finds that
appellate adjudication is not yet warranted.
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other
things, this law eliminates the concept of a well-grounded
claim, redefines the obligations of the VA with respect to
the duty to assist, and supercedes the decision of the United
States Court of Appeals for Veterans Claims in Morton v.
West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v.
Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam
order), which had held that VA cannot assist in the
development of a claim that is not well grounded. This
change in the law is applicable to all claims filed on or
after the date of enactment of the Veterans Claims Assistance
Act of 2000, or filed before the date of enactment and not
yet final as of that date. Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096,
___ (2000); see Karnas v. Derwinski, 1 Vet. App. 308, 313
(1991) (Where the law or regulation changes after a claim has
been filed, but before the administrative or judicial appeal
process has been conducted, the version of the law or
regulation most favorable to the veteran shall be applied.).
In this case, according to the December 1998 Statement of the
Case, the RO denied the veteran's claim as not well grounded.
That legal basis for a decision no longer exists. Because of
the change in the law brought about by the Veterans Claims
Assistance Act of 2000, a remand in this case is required for
compliance with the notice and duty to assist provisions
contained in the new law. See Veterans Claims Assistance Act
of 2000, Pub. L. No. 106-475, §§ 3-4, 114 Stat. 2096, ___
(2000) (to be codified as amended at 38 U.S.C. §§ 5102, 5103,
5103A, and 5107).
The Board specifically finds that there is likely additional,
pertinent evidence available, but not yet of record. In his
January 1999 Substantive Appeal, the veteran indicated post-
service medical treatment for lung problems at the following
medical facilities: Army Hospital at Fort Sam Houston in San
Antonio, Texas, in Winter 1989; Randolph Air Force Base
Hospital, in Universal City, Texas, during 1989 to 1991;
Redstone Arsenal Army Hospital in Huntsville, Alabama, from
1991 to 1994; Maxwell Air Force Base Hospital in Montgomery,
Alabama, from 1994 to 1997; and the VA Medical Centers in
Tuskegee, Alabama, and Montgomery, Alabama, since 1997.
During his November 2000 video Board hearing, he indicated
further treatment at Cullman emergency room, Woodland
Community Hospital, and East Alabama Medical Center, as well
as from a Dr. Gary Harrelson and a Dr. McGee. Except for
some records from Fort Sam Houston Army Hospital, no records
associated with any of these alleged episodes of treatment
are of record and the veteran stated that he had made no
independent attempt to obtain such records. The RO must
attempt to obtain this evidence prior to appellate review.
The Board cannot adjudicate this claim based on an incomplete
record. See Culver v. Derwinski, 3 Vet. App. 292 (1992) (VA
has a duty to obtain all pertinent medical records which have
been called to its attention by the appellant and by the
evidence of record.).
The veteran also indicated that he filed a claim for benefits
with the Social Security Administration. Although he
indicated that he was denied such benefits, is it likely that
that claim file contains pertinent medical evidence.
Accordingly, this case is REMANDED for the following:
1. The RO should attempt to obtain any
and all medical records pertaining to the
veteran's treatment for restrictive lung
disease, to include those from the
following sources: Army Hospital at Fort
Sam Houston in San Antonio, Texas, dated
in 1989; Randolph Air Force Base
Hospital, in Universal City, Texas, dated
from 1989 to 1991; Redstone Arsenal Army
Hospital in Huntsville, Alabama, dated
from 1991 to 1994; Maxwell Air Force Base
Hospital in Montgomery, Alabama, dated
from 1994 to 1997; VA Medical Centers in
Tuskegee, Alabama, and Montgomery,
Alabama, dated since 1997; Cullman
emergency room; Woodland Community
Hospital; East Alabama Medical Center; a
Dr. Gary Harrelson; and a Dr. McGee. The
veteran should be contacted to provide
additional addresses, dates of treatment,
or other information, as well as
authorized release forms, as needed.
Copies of all correspondences made and
records obtained should be associated
with the claims folder.
2. The RO should obtain from the Social
Security Administration all records
pertinent to the veteran's claim for
disability benefits, including any
medical records relied upon concerning
that claim. Copies of all
correspondences made and records obtained
should be made part of the claims folder.
3. The RO should then review the claims
file and ensure that any other
notification and development action
required by the Veterans Claims
Assistance Act of 2000 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107), are fully
complied with and satisfied. The RO
should also schedule the veteran for VA
respiratory examination, if necessary to
make a decision on the claim. For
further guidance on the processing of
this case in light of the changes in the
law, the RO should refer to VBA Fast
Letter 00-87 (November 17, 2000) and 00-
92 (December 13, 2000), as well as any
pertinent formal or informal guidance
that is subsequently provided by VA,
including, among others things, final
regulations and General Counsel precedent
opinions. Any binding and pertinent
court decisions that are subsequently
issued also should be considered.
4. Thereafter, the RO should
readjudicate the claim on appeal on the
merits and based on all of the evidence
in the claims folder.
5. If any benefit sought on appeal
remains denied, the appellant and
representative, if any, should be
provided with a supplemental statement of
the case (SSOC). The
SSOC must contain notice of all relevant
actions taken on the claim for benefits,
to include a summary of the evidence and
applicable law and regulations considered
pertinent to the issue currently on
appeal. An appropriate period of time
should be allowed for response.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified; however, the veteran is advised that
failure to cooperate by reporting for examination may result
in the denial of the claim. 38 C.F.R. § 3.655 (2000).
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).